Crim Pro--Fourth Amendment

Question 1

What rights are protected under the Fourth Amendment?

Answer 1

The 4th amendment provides that people should be free from unreasonable searches and seizures. Also provides no arrest or search warrants shall be issued, except on probably cause and under oath, describing with particularity the place, persons, or things to be seized. The 4th Amendment’s protections have been extended to the states via the 14th amendment.

Question 2

Does the 4th amendment apply to conduct by private parties?

Answer 2

No. Applies only to gov’t conduct. In essays need to identify the gov’t actor. Usually the police.

Question 3

Who has standing to assert a 4th amendment violation?

Answer 3

All persons, not just citizens. BUT must have a reasonable expectation of privacy. Important to analyze standing in each questions.

Question 4

What kinds of searches fall within scope of 4th amendment?

Answer 4

Of dwelling places; papers; personal effects; of person

Question 5

What is the exclusionary rule?

Answer 5

Any evidence illegally obtained under the 4th amendment shall be excluded at trial.

Question 6

What is the fruit of the poisonous tree doctrine?

Answer 6

Not only is the illegally obtained evidence itself inadmissible but also any other evidence or “fruit” stemming from the “poisonous tree.”

Question 7

Can you purge the taint of the poisonous tree?

Answer 7

Yes if: a) INDEPENDENT SOURCE – evidence of same or similar nature obtained from an independent source; b) INEVITABLY DISCOVERED – evidence that would have been discovered anyway; c) SUBSEQUENT AND VOLUNTARY SUPPLY – defendant supplies subsequently. BOP on G.

Question 8

What are some examples of when there is no standing to assert 4th amendment right?

Answer 8

a) mere presence in an automobile not your own does not confer standing; b) ABANDONMENT – discarding of evidence – if a person gets rid of evidence that was on his person, no 4th A violation – i.e., mere ownership of evidence is not sufficient.

Question 9

Can a person have an expectation on privacy in a public place?

Answer 9

Yes, but it will depend on the circumstances. So perhaps in a phone booth where the door is closed and perhaps not if the door is open and everyone can hear you.

Question 10

What items of personal effects have been held to not be subject to a reasonable expectation of privacy?

Answer 10

Concept is that these items are “held out” to the public. Handwriting samples; voice samples; bank records; telephone numbers; student lockers and school bags in public schools IF THERE IS A REAS BELIEF CONTAIN CONTRABAND; telephone conversations where no effort made to make private; activities in open areas; trash; jail cells.

Question 11

What is G’s BOP in challenging a motion to suppress?

Answer 11

Preponderance of the evidence (more likely than not)

Question 12

What happens if D testifies at a hearing on a motion to suppress?

Answer 12

Evidence cannot be used against him during trial to show guilt but can be used for impeachment, which in theory is just to show credibility.

Question 13

What is the warrant requirement?

Answer 13

In order for a search and seizure to be valid, there is a presumption that the police must have acted pursuant to a valid warrant. Lots of exceptions.

Question 14

What are the warrant exceptions?

Answer 14

Stop & Frisk (Terry stop); consent; hot pursuit; search incident to a lawful arrest; automobile/vehicle; plain view; exigent circumstances; border searches.

Question 15

What is a stop and frisk search?

Answer 15

Comes up on exam if someone is walking around suspiciously and cops pat them down. Does not involve a car.

Question 16

What are the elements of a Terry stop and frisk?

Answer 16

a) police must have a “reasonable articulable suspicion” that a person is armed and dangerous and that a crime has been committed – looking for concealed weapons; b) modest amount of suspicion ok; c) FOR WEAPONS ONLY, NOT CONTRABAND; d) pat down – least intrusive means possible under the circumstances. Can’t stop and frisk just because someone has failed to show ID. In short, generally Terry stops are limited to a pat down for concealed weapons only.

Question 17

How has Terry stop been expanded over years?

Answer 17

PO suspicion may be based on information from an informant, even an anonymous one, not just PO’s own observation; can be used to detain suspect for investigation of possible crime, not just to check for weapons; may seize personal effects if grounds found during stop.

Question 18

What is a consent search?

Answer 18

D or person in authority gives consent to the search, and the consent is a voluntary, knowing and intelligent waiver. Can’t be a result of police coercion, tho PO has no duty to explain to target rights. Search must be limited to scope of consent. Consent can be revoked at any time. Consent may not be obtained by trickery. If PO uses false pretenses to obtain access, no right to seize.

Question 19

What third parties can consent to searches?

Answer 19

Any person with authority over the premises – e.g., a roommate, tenant, spouse, parent. Ownership is not the test, though. A land lord can’t consent to a search of a tenant’s apartment. A motel owner can’t consent to a search of a guest’s room.

Question 20

What is hot pursuit doctrine?

Answer 20

If police are in hot pursuit of a suspect in a felony case, suspect cannot escape arrest and search by going into his house. PO may follow into dwelling. Once inside, P may seize evidence they see in “plain view.” Don’t see this a whole lot. Easy.

Question 21

What is a lawful arrest?

Answer 21

A felony arrest without a warrant by a police officer in public is lawful if based on probable cause.

Question 22

What is probable cause?

Answer 22

Probable cause is trustworthy facts and knowledge sufficient for a reasonable person to believe that the suspect has committed a crime. Probable cause is determined from the “totality of the circumstances.”

Question 23

What is search incident to lawful arrest?

Answer 23

Incident to a lawful arrest, P may search the person and areas into which the person might reach to obtain a weapon or destroy evidence. Limited to person’s immediate control or lurch. Lurch could include the passenger compartment of a car but not the trunk. May permit search of passenger area of car. “Incident to” includes before arrest if there is PC to arrest.

Question 24

What is the automobile/vehicle exception?

Answer 24

Warrantless searches of vehicles may be justified bc of inherent mobility and risk of losing evidence. Vehicle cannot be stopped in first place unless prob cause. If PC exists, depending on probable cause, PO may search entire vehicle, not just passenger area, including trunk. If there is pc that suspect stole TVs can search trunk but not the glove compartment. Once stopped, other exceptions might apply such as SITA and plain view.

Question 25

How does vehicle exception work in context of vehicle stops?

Answer 25

Randmom stops to check on license w/o more – not search. Stopping every vehicle or every 5th (for example), can search if there is PC or evidence in plain view.

Question 26

What happens if vehicle is impounded?

Answer 26

If arrest is effectuated and vehicle impounded, ok to inventory vehicle and use whatever find

Question 27

What is the plain view doctrine?

Answer 27

Suspicious evidence in plain view (no effort by PO to uncover) can be seized w/o warrant if: a) PO lawfully on premises; b) no search for evidence – just discovered it by accident in essence; c) evidence actually in plain view; d) ambit of plain view limited by scope of warrant or authority for lawful presence

Question 28

What is the exigent circumstances exception?

Answer 28

Warrantless search ok if circumstances exist that are emergency and exigent such that they threaten safety of officers; targets of the search or the existence of the evidence. Circumstances need not be dire – loss of evidence may be sufficient. No crime scene exception, that is arrival at a crime scene is not an exigent circumstance.

Question 29

What are the requirements of a warrant?

Answer 29

Warrant must be particular in its description of the place to be searched and items sought. Must be sworn by PO under oath. Submitted to magistrate or judge who must approve. Determine that PC exists. Look at totality of circumstances. Good faith mistakes not necessarily fatal to a warrant’s validity.

Question 30

What is rule with respect to intrusive body searches?

Answer 30

4th A protects against unreas searches. Terry stop = frisk. Intrusive body searches generally req warrant. Taking blood might be ok without warrant, whereas bodily cavity search not so much.

Question 31

What is the general rule re warrantless arrests?

Answer 31

In general, a warrant is not necessary in order to effectuate a valid arrest. PO can make warrantless arrest for a felony committed in her presence or with PC. Re misdemeanors, warrantless arrest by PO ok if committed in their presence and constitutes breach of the peace. W A ok in public place.

Question 32

What is rule re warrantless arrest in private places?

Answer 32

Absent exigent circumstances, police may not enter home and make warrantless arrest. For serious offenses, impractical or dangerous for P to get a warrant; or reasonable cause to believe suspect will destroy evidence; or hot pursuit. Generally no exigent circumstances for non-serious offenses.

Question 33

What happens if there has been a warrantless arrest?

Answer 33

Arrest typically valid, BUT D entitled to a prompt determination by judicial officer that probably cause did, in fact, exist. GERSTEIN PROFFER.

Question 34

What is basically the only time a warrantless arrest is not proper?

Answer 34

When police enter private dwelling and make arrest in absence of exigent circumstances.

Question 35

In essays were assessing the search incident to a lawful arrest exception, what is important to do?

Answer 35

Analyze whether there was a lawful arrest – include what probable cause is, whether it existed. Note that if not a lawful arrest, all evidence obtained as a result of it would have to be suppressed bc of fruit of poisonous tree exception.

Question 36

Can police search or seize personal effects as part of a stop and frisk search?

Answer 36

Generally, police can pat down things like purses and briefcases that are a reasonable extension of the body. Need to argue this. If not a reasonable extension, Only if grounds are found after the defendant is stopped. Search must be limited to weapons only. Police have no right to stop and frisk for other contraband such as drugs.

Question 37

What is the expansion of Terry relating to drugs?

Answer 37

Generally, Terry is limited to a pat down for concealed weapons. If, however, while the officer is conducting the pat down, he feels something he knows to be drugs, then those drugs can be admissible. However, the officer must be knowledgable in areas related to drug enforcement . A regular police officer with no specialized knowledge cannot admit such evidence. Look for facts like a “drug enforcement agent” to clue into issue.

Question 38

What is scope of search under automobile exception?

Answer 38

No set rule. Follow the probable cause. If the probable cause is for stolen TVs, can’t look in the glove compartment. General rule, as practical matter, is the smaller the item the wider the search.